Case Number: 170041

Whether the Defence Forces was justified in its decision to refuse access to a draft investigation report on the ground that the record no longer exists

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted a request to the Defence Forces on 2 November 2016 for a copy of an original draft investigation report from 23 August 2016, created in the course of a Redress of Wrongs investigation relating to him, and any records pertaining to it. On 6 December 2016, the Defence Forces decided to part grant the request. It released a total of 11 records, with certain records containing redactions under section 37 of the FOI Act.

On 15 December 2016, the applicant sought an internal review of that decision on the ground that the report of 26 October 2016 to which access had been granted was not the original draft investigation report he sought. On 17 January 2017, the Defence Forces affirmed its decision, and explained that the final investigation report dated 26 October 2016 is the only report that exists. On 25 January 2017, the applicant sought a review by this Office of the Defence Forces' decision in respect of the draft report.

During the course of this review, the Defence Forces provided this Office with information regarding the applicable record management policy and the searches conducted to locate the record sought by the applicant. Ms McCrory of this Office provided the applicant with details of those searches by letter on 27 March 2017. She also informed the applicant of her view that the Defence Forces was justified in deciding that the record sought did not exist or could not be found. As the applicant has indicated that he requires a formal decision on the matter, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the Defence Forces and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Defence Forces on the matter.

Scope of Review

This review is solely concerned with whether the Defence Forces was justified in its decision to refuse the applicant's request for the original draft investigation report on the ground that it no longer exists.

Analysis and Findings

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in search cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

In a submission to this Office, the Defence Forces provided details of the applicable record management policy and details of the searches conducted to locate the record sought by the applicant. As outlined above, Ms McCrory of this Office has already provided the applicant with these details. In summary, the Defence Forces stated that the document sought by the applicant was a printed copy of the Investigating Officer's report which was used to brief the applicant about the investigation. It stated that the electronic copy of the report was progressed in a digital format until the final report was completed and that the particular hard copy of the report sought by the applicant was shredded as it was out-of-date and no longer required.

The Defence Forces further stated that there is no policy to retain drafts of documents unless a specific requirement applies to the circumstances. It stated that in this instance the document was not required to be retained. Furthermore, it stated that compliance with the Defence Forces' Administrative Instruction A8 is the required policy to follow for Investigating Officers which makes no mention of retention of draft copies of reports.

I note that the applicant expressed dissatisfaction with the actions of the Defence Forces in relation to this record, and has contended that the Defence Forces breached their own procedures in not keeping the original hardcopy of the report. However, the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, or to investigating complaints against a public body. The jurisdiction of this Office is limited solely to considering requests for reviews of decisions of bodies under the FOI Act.

My role in reviewing the Defence Forces' decision under section 15(1)(a) is to determine whether it conducted all reasonable steps to locate relevant records. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. The Act does not provide a right of access to records that ought to exist, nor does it require bodies to create records that do not exist or cannot be found at the time of the request.

Having regard to the information provided by the Defence Forces to this Office, I find that it was justified in its decision to refuse the applicant's request for access to the record sought on the ground that the record no longer exists.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Defence Forces in this case.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator